Wakilii

Kirima Limited & Others v Kabushenga (Civil Suit 18 of 2022)

High Court · [2023] UGCOMMC 267 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on defendant's application for recusal of trial judge pursuant to Constitutional (Recusal of Judicial Officers) (Practice) Directions, 2019
Decision
Judge to continue hearing the main suit; recusal application dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court declined to recuse itself from hearing the main suit, finding that the defendant failed to satisfy the objective test for reasonable apprehension of bias. The court held that mere allegations without proof of actual bias, coupled with unfounded suspicions based on scheduling practices and an email address appearing in correspondence, do not meet the standard for recusal. The court found that the defendant's applications had been handled expeditiously and that delays were caused by the defendant's own forum shopping and procedural maneuvers, not judicial bias.

Outcome

Judge to continue hearing the main suit; recusal application dismissed

Facts

This ruling addresses a recusal application made by the defendant in an ongoing civil suit. The defendant, represented by Alvarez Advocates, requested by letter dated 6 November 2023 that Hon. Lady Justice Anna B. Mugenyi recuse herself from further hearing Civil Suit No. 18 of 2022. The defendant cited grounds under paragraphs 7(d), (e), and (f) of the Constitutional (Recusal of Judicial Officers) (Practice) Directions, 2019: alleged exparte communications, inappropriate comments/conduct, and actual, imputed, or apparent bias. The defendant based his allegations primarily on differential treatment in fixing hearing dates for applications filed by the plaintiffs versus those filed by the defendant, and on the appearance of the judge's personal email address in correspondence from the plaintiffs' counsel. The court examined the chronology of all applications filed in the matter and found that applications filed by both parties had been handled within reasonable timeframes, that delays in the defendant's applications were caused by the defendant's own conduct including forum shopping and complaints to other judicial officers, and that there was no evidence of exparte communication between the judge and the plaintiffs' counsel.

Issues

  1. Whether the trial judge should recuse herself from hearing Civil Suit No. 18 of 2022 on grounds of alleged exparte communications with lawyers, inappropriate conduct, and actual, imputed, or apparent bias.
  2. Whether differential fixing dates for applications filed by the defendant versus those filed by the plaintiffs constitutes evidence of bias.
  3. Whether the judge's personal email address being copied in correspondence from opposing counsel constitutes exparte communication warranting recusal.

Orders

  • Application for recusal dismissed.
  • Judge declined to recuse herself from further hearing Civil Suit No. 18 of 2022.

Rules and key headnotes

Recusal of Judicial Officers — Test for Reasonable Apprehension of Bias
The test for recusal based on apprehension of bias is whether a reasonable, objective, and informed person, acting on the correct facts, would reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case. The onus of establishing bias rests on the applicant, and unfounded or unreasonable apprehension of bias cannot be a justifiable cause for recusal.
Recusal — Burden of Proof and Evidence Required
A party seeking recusal must adduce proof of the truth of allegations of bias. Mere allegations, suspicions, or figments of imagination are insufficient. The challenger must demonstrate bias with convincing evidence, and it is improper for a judge to recuse himself or herself unless the alleged cause of recusation is known to exist or is shown by proof to be true in fact.
Recusal — Litigants Have No Right to Choose Which Judicial Officers Hear Their Cases
Litigants have no right to choose which judicial officers should hear and determine their cases. All judicial officers take an oath to administer justice impartially without fear, favor, affection, or ill will, and that oath must be respected. While litigants may apply for recusal where there is reasonable apprehension of partiality, they cannot object merely because they believe a particular judge will be less likely to decide the case in their favor.
Recusal — Case Management and Scheduling Not Evidence of Bias
The allocation of hearing dates and signing of applications by a judge is a case management tool adopted to ease and quicken the flow of work and cannot constitute reasonable apprehension of bias. Differences in scheduling timeframes for applications, absent evidence of deliberate discrimination, do not establish bias.
Recusal — Exparte Communications Must Be Proven
Allegations that a judge engaged in exparte communications with lawyers or parties require concrete evidence. The mere appearance of a judge's personal email address in correspondence between counsel, without proof that the judge initiated, received, or responded to such communication, is insufficient to establish exparte communication warranting recusal.
Judicial Independence — Resisting Pressure and Intimidation
Judicial officers are required to administer justice without fear, favor, or prejudice and must resist all manner of pressure, regardless of where it comes from. Attempts by litigants or counsel to intimidate or scare a judge into recusal through untrue and derogatory statements, or to undermine judicial independence, will not be condoned.
Recusal — Forum Shopping and Procedural Abuse
Where a party repeatedly files complaints and applications seeking to have a case reassigned to different judges without substantive grounds, and such conduct demonstrates forum shopping aimed at frustrating the hearing and determination of a matter, the court will not countenance such abuse of process as a basis for recusal.

Legislation cited (2)

Cases cited (12)

  • Supreme Court Misc. Application No. 03 of 2021
  • Take 2 and Save Trading C.C & Others v The Standard Bank of S.A. Ltd Case No. 21 of 2003
  • The President of the Republic of South Africa & others v South African Rugby Football Union & others 1999 (4) S.A. 147 C.C.
  • Porter v Magill [2001] UK HL 67
  • Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700
  • R. v S. (R.D) (1997) 118 CCC (3d) 353
  • Male Mabirizi v The Kabaka of Buganda (Supreme Court Civil Appeal No. 13 of 2018)
  • Meera Investments Ltd v The Commissioner General URA (Court of Appeal Civil Appeal No. 15 of 2007)
  • Carter-Artis case 1981
  • Uganda Polybags Ltd v Development Finance Company Ltd (Supreme Court Misc. Application No. 2 of 2000)
  • Attorney General v Anyang' Nyong'o & Others [2007] 1 EA 12
  • The state versus Jacob Zuma & another

Full judgment

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Kirima Limited & Others v Kabushenga (Civil Suit 18 of 2022) [2023] UGCommC 267 (22 November 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.